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Provides EPA authority to require corrective action for all releases of hazardous waste or constituents from any SWMU at a RCRA treatment, storage or disposal (TSD) facility, regardless of the time at which waste was placed in such unit.

Mandates that any permit issued after HSWA (Nov. 8, 1984) by EPA (or a State) include corrective action provisions and contain schedules of compliance (where such corrective action cannot be completed prior to issuance of the permit).

RCRA §3004(v) - Corrective Action Beyond Facility Boundary

Provides EPA authority to require corrective action be taken for releases beyond the facility boundary where necessary to protect human health and the environment.

Allows EPA (or authorized state) to include permit terms or conditions as necessary to protect human health and the environment.

Provides basis for requiring corrective action for an “area(s) of concern” (AOC) at a RCRA facility.

RCRA §3008(h) - Interim Status Corrective Action

Provides EPA authority to issue orders requiring corrective action (e.g., for releases from SWMUs) to facilities without or seeking a RCRA TSD permit.

RCRA §7003(a) - Imminent Hazard

Provides EPA the authority to take enforcement actions to compel corrective action where solid or hazardous waste may present an imminent and substantial endangerment to human health or the environment.

Essentially codifies the RCRA §3004 (u) & (v) mandates and broadly applies to all SWMUs, not just “regulated units” under Subpart F.1

40 CFR 270.14(d) - Information Requirements for SWMUs

Requires permittees to provide descriptive information on the SWMUs themselves and all available info pertaining to any release from the units in Part B permit applications.

40 CFR 270.32(b)(2) - Establishing Permit Conditions

Codifies the “Omnibus Provision” under RCRA §3005(c)(3) that provides EPA/State broad authority to include terms and conditions necessary to protect human health and the environment.

1Under 40 CFR 264.90, a “regulated unit” includes surface impoundments, waste pile, land treatment unit, or a landfill that received hazardous waste after July 26, 1982 and they must comply with 40 CFR 264.91 - 264.100 in lieu of 40 CFR 264.101.

The term ‘SWMU’ was first defined in the First HSWA Codification Rule, which was based on the legislative history of RCRA §3004(u).2

“Any unit at the facility from which hazardous constituents might migrate, irrespective of whether the units were intended for the management of solid and/or hazardous wastes.”

The SWMU definition was revised as part of the Subpart S Proposal to be included in 40 CFR 265.501.3

“Any discernable unit at which solid wastes have been placed at any time, irrespective of whether the unit was intended for the management of solid or hazardous waste. Such units include any area at a facility at which solid wastes have been routinely and systematically released.”

For purposes of this permit includes any discernable units that have ever accumulated, treated, stored, or disposed of solid wastes (irrespective of whether the units were intended for waste management).

SWMUs include areas that have been contaminated by routine and systematic releases of hazardous waste or hazardous constituents, excluding one-time accidental spills that are immediately remediated and cannot be linked to solid waste management activities (e.g., product or process spills).

“Inactive or historical” SWMUs which are not permitted or subject to RCRA regulations, but have at some time managed solid wastes (irrespective of whether the units were intended for waste management).8

But for their dates of operation and RCRA statutory deadlines, these would likely be subject to RCRA regulations, other than corrective action.

“Routine and Systematic Release Areas” - Those areas of a facility, typically associated with production processes, which have been contaminated as a result of routine and systematic releases of solid or hazardous wastes or hazardous constituents.9

The areas must have become contaminated as a result of a deliberate release, as opposed to a one-time accidental spill which cannot be linked to a SWMU.

Does not include areas contaminated by passive leakage from product storage.

Releases and resulting contamination from production processes will generally not be considered SWMUs, unless EPA finds that the releases have been routine and systematic in nature.

The EPA recognized that its interpretations of the SWMU definition had the effect of precluding §3004(u) from addressing some environmental problems at RCRA facilities.

“The EPA intends to exercise its authority as necessary, under the RCRA ‘omnibus provision’ or other authorities provided in RCRA (e.g., §3008(h), §7003(a), or CERCLA (e.g., §104 or §106) to correct such problems and to protect human health and the environment”.9

EPA has reiterated that corrective action for non-SWMU related releases may be required in RCRA permits under the “omnibus authority”.10

To reflect a more holistic approach, permits and Orders often use the term ‘area of concern’ (AOC) to refer to releases which warrant investigation or remediation (i.e., corrective action).

Omnibus authority can only be imposed where shown to be “necessary to protect human health and the environment.”11

Authority may not be used to override the exclusions (express or implied) from statutory RCRA jurisdiction found in the definition of “solid waste.”12

Agency (i.e., permit writer) may not invoke unless the administrative record contains a properly supported finding that an exercise of the omnibus authority is necessary.

In other words, there must be a rationale basis for EPA/State to require investigation of the suspected contaminated area. For example: dead vegetation or dark stained soils might indicate release occurred in that area.

Similar to the SWMU definition, there is not a promulgated definition in the RCRA regulations. Consequently, EPA relies on model permit language for a working definition of the term ‘AOC’.

Area of Concern13

Includes any area having a probable release of a hazardous waste or hazardous constituent which is not from a SWMU and is determined by the Commissioner to pose a current or potential threat to human health or the environment.

Such areas may require investigations and remedial action as required by this permit and Rule 1220-1-11-.07(8)(b)(2)(ii) in order to ensure adequate protection of human health and the environment.